HKSAR v. STHAPAK, RAKESH KUMAR

HCMA 1180/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1180 OF 2004

(ON APPEAL FROM STCC 4779 of 2004)

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J U D G M E N T

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1.  The appellant in this matter, an Indian national, was sentenced by a magistrate to serve a period of 15 months imprisonment in respect of an offence of using a forged travel document for the purposes of Part II of the Immigration Ordinance and to a concurrent term of six months imprisonment for an offence of making a false representation as to his identity to an immigration assistant.  Both offences occurred on the same day when the appellant arrived in Hong Kong and tendered an Indian passport in a name other than his own: his own photograph had been substituted for that of the genuine passport holder.  The immigration officer was suspicious of the passport.  When the appellant was searched a copy of another Indian passport reflecting his true name was found in his possession together with an international driving permit and a motor driving licence.

2.  When he was later interviewed the appellant explained that in September 2004 he had come to know a person in the United Kingdom who had offered to arrange a permit for him to work there.  The Appellant gave that individual his own Indian passport.  Later he was given a forged travel document which he appreciated to be forged.  No explanation was offered as to why he accepted this forged travel document.

3.  It is evident from the summary of facts which he agreed that, at the time he presented the passport, he was seeking to enter Hong Kong.  His case was that he did not intend to remain here for long.  He explained after arrest, and repeated in mitigation, that he was ultimately headed back to India to visit an ailing relative.  Why he should wish to travel from the United Kingdom to India via Hong Kong, particularly when he claims there is some urgency, has not been revealed.  However, the prosecution did not seek to challenge his assertion and there is nothing to indicate that the Magistrate sentenced the Appellant on any other basis.  It is the fact of attempted entry rather than the intended duration of stay that attracts the sentence.

4.  The Appellant has been referred to, somewhat loosely, as being a “transit passenger”.  He was not.  A transit passenger is a person who remains on what is known as the "air side" of the airport and does not seek to enter Hong Kong:  when the Appellant presented the passport he was seeking to land as contemplated by the Immigration Ordinance Cap 115. 

5.  My attention in this connection has been drawn to the decision of Stock J., as he then was, in HKSAR v CHU Man HCMA 1012 of 1998.  In that matter, which bears a factual similarity to this matter, he identified a distinction, for the purposes of sentence, to be drawn between the situation where a person is "sitting with a false travel document in a transit lounge" , a transit passenger, and that where a false representation has been made with the travel documents in an attempt to enter Hong Kong, ostensibly for a short period.  He imposed a period of 12 months imprisonment on a plea for a person falling within the latter category.

6.  Another similar matter was heard by Stock, J., on the same day.  In that, HKSAR v NG Lai-kin [1998] 1 HKC 186 he also reduced the sentence to one of 12 months imprisonment on a plea.  That decision was referred to by His Honour Judge McMahon, as he then was, sitting as a Deputy Judge of the Court of First Instance in HKSAR v YIM Lee-kuen.

7.  However, a feature common to both NG Lain-kin and YIM Lee-kuen and relied upon by each Judg4e was that concessions were made by the Respondent that the sentences were inappropriate.  No such concession is made in this matter.  The Respondent says the sentence is the correct one.

8.  My attention was also drawn to a large number of other decisions.  Not, however, to that of the Court of Appeal in HKSAR v PAK Wan-lung CACC573/1998 which, subsequent to CHU Man, considered the appropriate sentence where a person uses a false travel document simply to pass through Hong Kong.  It reviewed the authorities thus

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Running through them very quickly: in R. v. Yu Wing-wut, Cr App No. 346/1984, the judgment of which was given on 6 September 1984, the Court of Appeal adopted a starting point of 27 months. In R. v. Chan Shing Leong, Magistracy Appeal No. 1149/1996, Leonard, J followed the 27-month starting point. In R. v. Mui Man Chiu, Magistracy Appeal No. 1160/1996, Sears, J was of the view that 27-month was excessive and he selected a starting point of 18 months. Apparently in 1990, in R. v. Tong Hung Hong, Magistracy Appeal No. 891/1990, Bewley, J also took 18 months for the starting point. In this case, [the Judge] adopted "27 months" as the starting point. Some weeks later in HKSAR v. Chu Man, Magistracy Appeal No. 1012/1998, Stock, J also went for "18 months" as a starting point. Granted that the Court of Appeal in Yu Wing-wut, supra did not purport to lay down any sentencing guideline, at least one judge of the Court of First Instance observed that it was too high.  However, none of the judges who took a different line gave any reasons for the departure from the view of the Court of Appeal. Therefore, despite the decisions drawn to our attention, we can find no justification for not selecting also a starting point of 27 months.”

9.  It follows, therefore, that the Magistrate would have been fully justified in adopting a starting point of 27 months imprisonment and imposing a sentence of 18 months on a plea of guilty.  That sentence would then fall to be reduced if there existed any further mitigation:  there was none.  Notwithstanding that, the Magistrate imposed a sentence of 15 months imprisonment.

10.  A further matter was urged on behalf of the appellant, that sentences "routinely imposed" are of the order of six months and that the Appellant has “a justifiable sense of grievance because his sentence is so severe."  It may be that other persons have been sentenced differently.  The issue before me is whether this appellant was sentenced appropriately for this offence.  That principle is clear from HKSAR v. LEUNG Yiu Ming & Anor [2000] 1 HKLRD 247, in which Nazareth VP said :

"	... when different sentences are passed on different accused for the same offences by different judges on different occasions. …the only consideration must be whether the sentence passed on the appellant…was appropriate."

11.  However, I was aware that the Court of Appeal had recently revisited a sentencing practice where, notwithstanding the existence of a clear guideline, Magistrates had routinely imposed lesser sentences and had created what might be regarded as a consistent policy of sentencing at a lower level:  see   Secretary for Justice v YU Wing-bor and Another [2004] 3 HKLRD 270. 

12.  I adjourned the matter to today to enable those representing the Appellant and the Respondent, to provide data which may suggest that a similar situation pertained in respect of offences of this nature.  I also was concerned, and remain so, that the oft-quoted decision in R v Bhagwant Singh-Padda HCMA 1447/1988, in which Bewley, J., set out certain categories for sentencing, may have been superseded by events and that time is ripe for reconsideration.  I indicated that if the data were to display a consistent approach, it may consider referring this matter to the Court of Appeal pursuant to sec. 118(1)(d) of the Magistrates Ordinance, Cap. 227.

13.  I have been furnished on behalf of the Appellant with a schedule prepared by the Duty Lawyer Scheme.  It relates to sentences imposed only in one Magistracy, Shatin.  It covers only one month, December 2004.  In respect of the offence of using a false travel document it shows that three Magistrates imposed sentences varying between 6 and 12 months in 11 cases.  Whilst each of those sentences is lower than that imposed on the Appellant, no trend or pattern is discernable from the Appellant’s limited data before me. 

14.  The Respondent has furnished schedules covering the years 2002, 2003 and 2004 reflecting sentences imposed on persons convicted of  both offences.  The schedules show sentences varying from non-custodial to 15 months imprisonment.

15.  The circumstances in which these offences may be committed encompass a wide variety of conduct.  The offences are likely to be committed by a wide variety of persons.  Their personal circumstances, even their nationalities, also will vary enormously.  These factors would properly be reflected in individual sentences, accounting for the wide range of sentences passed.

16.  This matter and the numerous authorities to which I have been referred demonstrate the diversity of sentencing considerations facing the courts.

17.  There is nothing to suggest that a consistent sentencing pattern has developed in the Magistracy in respect of this type of offender committing this type of offence.  There is no justification for reserving this matter to the Court of Appeal.  All that the data shows is that others have received lower sentences that the Appellant but that his sentence is not in excess of every other sentence imposed.  This sentence falls within the range is sentences, albeit at the top of the range for first offenders.

18.  No complaint is made, and rightly so, of the sentence imposed on the second charge nor of the order that the sentences be served concurrently.  Insofar as it is a matter of interest, I note that that sentence is in accordance with others imposed in Shatin Magistracy during December 2004 according to the figures furnished to me.

19.  I am unable to find anything in the circumstances of this offence or this offender which would have justified me properly deviating from the starting point of 27 months previously accepted by the Court of Appeal, had I been imposing the sentence. 

20.  In the circumstances I confirm the sentences and order made by the Magistrate.  The appeal is dismissed.